Citation Nr: 0121671
Decision Date: 08/27/01 Archive Date: 09/04/01
DOCKET NO. 98-19 483A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an increased evaluation for schizophrenia,
rated as 30 percent disabling, prior to June 25, 1999.
2. Entitlement to an increased evaluation for schizophrenia,
rated as 70 percent disabling, after June 24, 1999.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran had active duty military service from February
1951 to December 1951.
This matter comes originally before the Board of Veterans'
Appeals (Board) on appeal from a November 1979 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio. It was remanded by the Board
of Veteran's Appeals (The Board) in May 2000 for the RO to
determine if the claim had been open since that time. The
veteran has since relocated to South Carolina, and his claim
has been handled by the RO in Columbia, South Carolina.
A hearing was held in Columbia, South Carolina, in May 2001,
before the undersigned, who is the Board member designated by
the Chairman to conduct that hearing. A transcript of the
hearing has been included in the claims folder for review.
FINDINGS OF FACT
1. Sufficient evidence for an equitable disposition of the
veteran's appeal has been obtained by the agency of original
jurisdiction.
2. The veteran's schizophrenia has been manifested by
isolation, sleep disorders, irritability, depression, and his
symptoms and manifestations have severely impaired his
ability to maintain gainful, meaningful employment.
CONCLUSIONS OF LAW
1. VA has satisfied its duty to assist the veteran in
developing facts pertinent to this claim. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat.
2096, 2097-98 (2000) (to be codified as amended at 38 U.S.C.
§ 5103A); 38 C.F.R. § 3.103 (2000).
2. The criteria for a 100 percent disability rating for
schizophrenia have been met during the entire appeal period.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7,
4.16 (c), 4.125, 4.126, and 4.130, Part 4, Diagnostic Code
9203 (1978).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
The veteran was originally granted service connection for
schizophrenia [paranoid type, acute, severe] in February
1952. He was assigned a 50 percent disability rating. By
1959, the veteran's disability rating had been reduced to
zero percent. Then in 1970, the evaluation was raised to 70
percent pursuant to 38 C.F.R. Part 4, Diagnostic Code 9203
(1970). Four years later, in September 1974, the veteran's
disability rating was reduced to 50 percent. The rating was
reduced again in 1978 to 30 percent, and then to 10 percent
in February 1980.
The veteran underwent a VA psychiatric examination in October
1980. The veteran complained of depression, sleeplessness,
and crying spells. When examined, the doctor reported that
the veteran's social and industrial impairment was moderately
to severely impaired. On the basis of this evaluation, the
veteran's evaluation was increased to 30 percent, effective
January 1978.
The veteran was notified of this decision and he appealed.
He contended that his condition was more disabling than the
criteria used for a 30 percent rating. In conjunction with
his appeal, the veteran then underwent a VA psychiatric
examination in October 1981. The findings of that
examination included:
. . . [the veteran] stated that he
is seeing a doctor . . . about every
month and is still taking Elavil, which
he said helps his sleep to some extent,
but with other symptoms such as crying
spells continuing. . . .
On examination the veteran appeared tense
and guarded and showed blunted affect.
He gave the history as stated above with
symptoms, including concern over his
physical problems, crying spells,
difficulty in concentrating and problems
with sleep. Speech was coherent, and
memory and judgment appeared adequate.
DIAGNOSIS: (1) Schizophrenia, residual
type, moderately severe.
The veteran's claim folder is devoid of any treatment records
for his psychiatric condition, or any other disability, until
late 1997. These records are from his local VA treatment
center. These records show treatment for complaints and
treatment for his mental disorder.
In conjunction with his ongoing claim, a VA psychiatric
examination was accomplished in June 1999. The veteran
complained of depression and an inability to deal with
stressful situations. He also complained of helplessness,
hopelessness, the lack of concentration, lethargy, insomnia,
and crying spells. The veteran further told that doctor that
he was paranoid and he thought "unreal" thoughts; auditory
and visual hallucinations were denied.
When examined, the examiner noted the following:
. . . His speech was rambling and
tended to be extremely detailed and he
seemed to be tangential and needed to be
frequently redirected. He tended to get
lost with giving minute details and
tended to forget the big picture. His
mood was dysphoric. His affect was
constricted. His thought processes were
mostly logical and goal directed but
seemed to be tangential from time to time
that needed frequent redirection.
Thought content was positive for paranoia
and some grandiosity but no evidence of
auditory or visual hallucinations or any
other delusions. There was no suicidal
or homicidal ideations. Cognitively, he
was alert and oriented to person, place,
time, and situation. His memory both
recent and remote was intact. His
concentration was fair. His insight was
limited and judgment was fair.
The doctor diagnosed the veteran as having "major depression
with psychotic features" and not schizophrenia, even though
the examiner admitted that he did not review the veteran's
claims folder prior to examining the veteran.
Following a review of the evidence, the RO then granted a 70
percent disability rating for paranoid schizophrenic
reaction. The effective date of the rating was June 25,
1999.
Another VA mental exam was done in January 2001. The veteran
told the examiner that he was sleeping ten to twelve hours a
day and was socially isolated. The mental status examined
produced the below results:
. . . His speech is tense, anxious,
some dysphoria. Mood as reported above
[depressed, anxious, guarded]. Speech is
unremarkable. Thoughts are concrete but
goal-directed and sequential. No active
hallucinations or delusions are reported.
Denies active suicidal or homicidal
thinking. Insight and judgment are fair.
The veteran was given reported as suffering from either
schizophrenia or a schizoaffective disorder. The examiner
additionally noted:
In my professional medical opinion this
vet is completely, totally, and
permanently disabled from his SC
schizophrenia and depression and is
unemployable for the same reason. This
opinion covers the period of calendar
year 1999 & 2000 to the present date and
for the foreseeable future.
The doctor assigned a Global Assessment of Functioning (GAF)
score of 43.
Two months later, in March 2001, the veteran underwent
another psychiatric examination. After completing the exam,
the doctor awarded a GAF score of 41; a diagnosis of paranoid
schizophrenia (by history) and a major depressive disorder
was given. Many of the observations made in January 2001
were repeated in the March 2001. However, the examiner in
March 2001 also noted:
. . . He described his mood as
"useless". Affect was generally pretty
flat. . . Despite some of his prior
feelings, he stated in the past he would
think about killing himself, but at
present he did not feel that way.
Thought content contained some paranoia,
he stated that he did feel very paranoid
that everybody was talking about him at
church because of the separation and that
has been preventing him from going. . .
He had partial insight, he did note that
he needed to continue to talk to the
therapist about his problems. . . .
In discussing the veteran's disability, the doctor reported
that the veteran's social adaptability, interactions with
others, and flexibility/efficiency in an industrial setting
were severely impaired.
After undergoing the various examinations, the veteran then
provided testimony before the Board in May 2001. The veteran
spoke of taking medications during the late 1970s through the
1990s. He testified that he had tried to work in various
jobs during this time but that the jobs were very stressful.
He told the Board that he remained a loner, he did not
associate with others, and he self-increased his medications
when he felt that he was experiencing more symptoms and
manifestations of his psychiatric disability. The veteran
did mention that the reason why he attempted employment in
the 1980s and 1990s was the simple fact that he needed Social
Security Administration and retirement benefits in his old
age, or when he was no longer capable of any type of
employment.
II. Analysis
When a veteran submits a compensation claim, VA has a duty to
assist him/her with that claim. Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096,
2097-2098 (2000) (to be codified at 38 U.S.C. § 5103A). VA
has attempted to obtain relevant medical treatment records,
the veteran has undergone numerous VA psychiatric
examinations since 1979, and the veteran has provided
testimony before the Board for the purpose of explaining his
contentions. Additionally, the appellant has been provided
appropriate notice of the pertinent laws and regulations, and
he has been given the opportunity to provide additional
information in support of his claim.
Notwithstanding the above, there is some indication that the
claims folder may not contain the veteran's VA medical
treatment records from 1981 to 1997, and any possible Social
Security Administration records. The Department does have a
duty to assist claimants in the development of their claims;
this duty includes acquiring documents that are in the
control of another government agency. Yet, attaining the
missing records in this instance is not necessary. The
claims folder contains over twenty years of medical records
that give a portrayal of the symptoms and manifestations
experienced by the veteran as a result of his schizophrenia.
As such, obtaining the additional information would be
nonproductive and would not enhance the veteran's claim.
Thus, it is the determination of the Board that VA has no
further duty to assist the veteran in the development of
facts pertinent to this claim, and the Board may decide the
claim based on the evidence before it.
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (2000). Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4 (2000). In determining the
current level of impairment, the disability must be
considered in the context of the whole recorded history,
including service medical records. 38 C.F.R. § 4.2 (2000).
An evaluation of the level of the disability includes
consideration of the functional impairment of the veteran's
ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10 (2000).
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155 (West 1991). Evaluation of a service-
connected disorder requires a review of the veteran's entire
medical history regarding that disorder. 38 C.F.R. §§ 4.1
and 4.2 (2000). It is also necessary to evaluate the
disability from the point of view of the veteran working or
seeking work, 38 C.F.R. § 4.2 (2000), and to resolve any
reasonable doubt regarding the extent of the disability in
the veteran's favor. 38 C.F.R. § 4.3 (2000). If there is a
question as to which evaluation to apply to the veteran's
disability, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2000).
The veteran's psychiatric condition has been rated pursuant
to the criteria found at 38 C.F.R. Part 4, Diagnostic Code
9203. Between the time that of the veteran's claim in 1979
and during the course of his appeal, new rating criteria for
psychiatric disorders, including schizophrenia, became
effective. See 61 Fed.Reg. 52,695 (1996) (to be codified at
38 C.F.R. Part 4). A review of the claims folder reveals
that the veteran was provided with both the old and new
rating criteria and he has been able to prevent evidence and
arguments that reflect both of those sets of criteria. As
such, the veteran is entitled to have his claim considered
under the criteria that is most favorable to him and no
prejudice against him will occur if the Board applies either
criteria to his case. Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991).
Nevertheless, where the amended regulations expressly provide
an effective date and do not allow for retroactive
application, the veteran is not entitled to consideration of
the amended regulations prior to the established effective
date. Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see
also 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is
awarded pursuant to any Act or administrative issue, the
effective date of such award or increase shall be fixed in
accordance with the facts found, but shall not be earlier
than the effective date of the Act or administrative issue).
In this instance, the Board must evaluate the veteran's claim
for an increased rating from September 1979 to November 7,
1996 (the effective date of the new criteria) under the old
criteria in the VA Schedule for Rating Disabilities.
Moreover, the Board must evaluate the veteran's claim for an
increased rating from the effective date of the new criteria
under both the old criteria in the VA Schedule for Rating
Disabilities and the current regulations in order to
ascertain which version is most favorable to the veteran, if
indeed one is more favorable than the other.
The veteran's service-connected schizophrenia is currently
rated as 70 percent disabling. Under the old criteria for
rating service connected psychotic disorders, a 10 percent
rating was assigned for psychotic disorders when there is
mild impairment of social and industrial adaptability. When
there is definite impairment of social and adaptability, a 30
percent rating was awarded. A 50 percent rating was assigned
where there was considerable impairment of social and
industrial impairment. For a 100 percent rating, it was
necessary for there to be active psychotic manifestations of
such extent, severity, depth, persistence, or bizarreness as
to produce total social and industrial inadaptability. When
there was lesser symptomatology such as to produce severe
impairment of social and industrial adaptability, a 70
percent disability evaluation was assigned. 38 C.F.R. §
4.132, Diagnostic Code 9411 (1979).
In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated
that the term "definite" in 38 C.F.R. § 4.132 (1993) was
"qualitative" in character, whereas the other terms were
"quantitative" in character, and invited the Board to
"construe" the term "definite" in a manner that would
quantify the degree of impairment for purposes of meeting the
statutory requirements that the Board articulate "reasons
and bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West
1991).
In a precedent opinion, dated November 9, 1993, the General
Counsel of the VA concluded that "definite" was to be
construed as "distinct, unambiguous, and moderately large in
degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VAOPGCPREC 9-93 (O.G.C. Prec. 9-93). The
Board is bound by this interpretation of the term
"definite." 38 U.S.C.A. § 7104(c) (West 1991).
Under the new criteria, a 10 percent rating is warranted for
occupational and social impairment due to mild or transient
symptoms which decrease work efficiency and ability to
perform occupational tasks only during periods of significant
stress, or when the symptoms are controlled by continuous
medication. A 30 percent rating is warranted for
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). A 50 percent
rating is warranted for occupational and social impairment
with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
The next higher rating, a 70 percent rating, may be assigned
for occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. The highest, or 100
percent schedular evaluation, contemplates total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; memory loss for names of close relatives, own
occupation, or own name. 38 C.F.R. Part 4, Diagnostic Code
9203 (2000).
In determining whether an increased evaluation is warranted,
the VA must determine whether the evidence supports the claim
or is in relative equipoise, with the veteran prevailing in
either event, or whether the preponderance of the evidence is
against the claim, in which case an increased rating must be
denied. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 3(a), 114 Stat. 2096, 2097-2098 (2000) (to be
codified at 38 U.S.C. § 5103A); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
The record prior to 1996 and after 1981 is not without
ambiguity along with a dearth of records. However, when the
Board evaluates a claim, it is required to look at the
overall history of the disability when deciding whether an
increased evaluation is warranted. Longitudinally it appears
that the veteran's psychiatric condition has been at least
moderately severe, if not severe, since the late 1970s.
There have been periods over this time when the veteran has
shown signs of improvement; however, it also appears that
after each one of these "improvements", he has returned to
his previous point of disability. Yet, the Board also notes
that the veteran has not become so seriously impaired that he
could be considered totally occupationally and socially
impaired.
First, it is the conclusion of the Board that the diagnostic
criteria in effect prior to November 1996 appears to be more
beneficial to the veteran's claim than the new criteria.
While the clinical findings do not exactly mirror the
schedular criteria for a 70 percent disability rating for
schizophrenia, the Board is of the opinion that the evidence
more closely approximates a 70 percent rating than the 30
percent rating assigned prior to June 25, 1999. This grant
is based on the veteran's medical history and clinical
findings, which show a severely depressed (possibly
suicidal), confused, dependent person. Therefore, a 70
percent evaluation for schizophrenia is appropriate.
Additionally, it is the decision of the Board that the Board
will apply the older criteria to veteran's claim after June
25, 1999 - there is no change to the 70 percent rating but
the older criteria is more advantageous to the veteran in
this case.
It is also the Board's conclusion that, on a practical level,
the veteran's schizophrenia is, and has been, so debilitating
as to render him totally industrially impaired, in that he is
unable to secure and maintain a substantially gainful
occupation consistent with his employment and educational
background. As a result of his medications, treatment,
manifestations, and symptoms resulting from his mental
disorder, the veteran has been unable to obtain and maintain
gainful, meaningful employment.
When benefit-of-the-doubt provisions are applied on behalf of
the veteran, the preponderance of the evidence is deemed to
show that he is precluded from gainful employment. As
schizophrenia is his only compensable service connected
disability, 38 C.F.R. § 4.16(c) (1978) comes into play. That
section reads:
The provisions of paragraph (a) of this
section are not for application in cases
in which the only compensable service-
connected disability is a mental disorder
assigned a 70 percent evaluation, and
such mental disorder precludes a veteran
from securing or following a
substantially gainful occupation. In
such cases, the mental disorder shall be
assigned a 100 percent schedular
evaluation under the appropriate
diagnostic code.
Thus, using the rating criteria that was in effect prior to
November 1996, a 100 percent disability rating for
schizophrenia is granted for the appeal period. 38 C.F.R. §
4.7, Part 4, Diagnostic Code 9203 (1978).
ORDER
Entitlement to a 100 percent rating for schizophrenia is
granted during the entire appeal period, subject to the
regulations governing the disbursement of monetary benefits.
M. W. GREENSTREET
Member, Board of Veterans' Appeals